Citation Nr: 0917214
Decision Date: 05/07/09 Archive Date: 05/12/09
DOCKET NO. 05-31 693 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Whether the severance of service connection for traumatic
arthritis of the right knee was proper.
2. Entitlement to an increased rating for a right knee
disability, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jennifer Hwa, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1969 to March
1973.
This matter comes before the Board of Veterans' Appeals
(Board) from January 2005 and March 2005 rating decisions of
a Department of Veterans Affairs (VA) Regional Office (RO)
that continued a 10 percent rating for a right knee
disability and severed service connection for traumatic
arthritis of the right knee. The Veteran testified before
the Board in October 2006. The Board remanded these claims
for additional development in June 2007.
FINDINGS OF FACT
1. The evidence does not show that the grant of service
connection for traumatic arthritis of the right knee was
clearly and unmistakably erroneous.
2. The Veteran's right knee disability has been manifested
by full extension and flexion limited at most to 90 degrees.
There is no subluxation, dislocation, ankylosis, or locking.
There is instability and x-ray evidence of arthritis.
CONCLUSIONS OF LAW
1. The criteria to sever service connection for the
Veteran's traumatic arthritis of the right knee have not been
met. 38 U.S.C.A. §§ 1110, 5109 (West 2002); 38 C.F.R. §§
3.105(d), 3.303, 3.307, 3.309 (2008).
2. The criteria for a rating in excess of 10 percent for a
right knee disability have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a,
Diagnostic Code (DCs) 5003, 5257, 5259, 5260, 5261 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Severance of Service Connection
Preliminarily, the Board notes that service connection may be
granted for a disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38
C.F.R. § 3.303(a). Service connection requires competent
evidence showing: (1) the existence of a present disability;
(2) in-service incurrence or aggravation of a disease or
injury; and (3) a causal relationship between the present
disability and the disease or injury incurred or aggravated
during service. Shedden v. Principi, 381 F.3d 1163 (Fed.
Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). Also, certain chronic diseases, including
arthritis, may be presumed to have been incurred during
service if manifested to a compensable degree within one year
of separation from active military service. 38 U.S.C.A. §§
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Once service connection has been granted, it can be severed
only where the evidence establishes that the grant is clearly
and unmistakably erroneous (the burden being on the
Government), and only where certain procedural safeguards
have been met. Stallworth v. Nicholson, 20 Vet. App. 482
(2006); Daniels v. Gober, 10 Vet. App. 474 (1997). Severance
of service connection based on any standard less than that
set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of
law. Stallworth v. Nicholson, 20 Vet. App. 482 (2006);
Graves v. Brown, 6 Vet. App. 166 (1994); Baughman v.
Derwinski, 1 Vet. App. 563 (1991).
In Stallworth, the United States Court of Appeals for
Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d)
contemplates consideration of evidence that post-dates the
award of service connection and that VA is not limited to the
law and the record that existed at the time of the original
decision. Stallworth v. Nicholson, 20 Vet. App. 482 (2006);
Allen v. Nicholson, 21 Vet. App. 54 (2007). In fact, the
Court noted that the regulation specifically allows a change
in medical diagnosis to serve as a basis for severance.
Indeed, in Stallworth, the Court, quoting Venturella v.
Gober, 10 Vet. App. 340 (1997), reiterated that if the Court
were to conclude that a service-connection award can be
terminated pursuant to § 3.105(d) only on the basis of the
law and record as it existed at the time of the award
thereof, VA would be placed in the impossible situation of
being forever bound to a prior determination regardless of
changes in the law or later developments in the factual
record." Stallworth v. Nicholson, 20 Vet. App. 482 (2006).
The Court in Stallworth further emphasized that the severance
decision focuses-not on whether the original decision was
clearly erroneous-but on whether the current evidence
established that service connection is clearly erroneous.
Stallworth v. Nicholson, 20 Vet. App. 482 (2006).
The Court has stated that clear and unmistakable error is a
very specific and rare kind of error. It is the kind of
error, of fact or of law, that, when called to the attention
of reviewers, compels the conclusion, to which reasonable
minds could not differ, that the results would be manifestly
different but for the error. Fugo v. Brown, 6 Vet. App. 40
(1993). To warrant revision of a decision on the ground of
clear and unmistakable error in a severance of service
connection case, there must have been an error in the
adjudication of the appeal that, had it not been made, would
have manifestly changed the outcome, thus, whether, based on
the current evidence of record, a grant of service connection
would be clearly and unmistakably erroneous.
In a May 1973 rating decision, the RO granted service
connection and awarded a 10 percent disability rating for the
Veteran's right knee disability under Diagnostic Code 5259,
which contemplates cartilage, semilunar, removal of,
symptomatic. 38 C.F.R. § 4.71a, DC 5259 (2008). By a June
2003 rating decision, the RO granted service connection and
assigned a separate 10 percent disability rating for
traumatic arthritis of the right knee under DC 5010.
38 C.F.R. § 4.71a, DC 5010 (2008). The RO proposed to sever
service connection for traumatic arthritis of the right knee
in January 2005. It then severed service connection for
traumatic arthritis of the right knee in a March 2005 rating
decision because the separate ratings had been based on
painful or limited motion of a major joint due to traumatic
arthritis, and painful or limited motion had already been
taken into consideration as part of the right knee disability
under DC 5259.
VA medical records dated from June 2005 to August 2005 show
that the Veteran's right knee disability was manifested by
intermittent flare-ups of right knee pain. The Veteran
reported that the pain in his right knee caused his leg to
give way when he walked.
On VA examination in February 2006, the Veteran reported not
having many problems with his right knee for 20 years since
his discharge from service. He complained of worsening
constant pain that increased in rainy weather. He stated
that it gave out easily and swelled up at times. He denied
flare-ups of joint disease, episodes of dislocation,
recurrent subluxation, inflammatory arthritis, or having
problems with activities of daily living. He occasionally
used a knee brace. Examination revealed no effusion or
ligamentous instability. There was some medial joint line
tenderness, but the patella was tracking normally. Range of
motion testing showed 110 degrees flexion and 0 degrees
extension with pain at 80 degrees. His range of motion was
unaffected by repetitive motion, and there was no objective
evidence of weakness, incoordination, fatigue, or lack of
endurance. The examiner found that the Veteran could have
further loss of range of motion and pain in functional
capacity during a flare-up but was unable to estimate the
actual additional loss. The examiner diagnosed the Veteran
with traumatic arthritis of the right knee and noted that the
Veteran had seemed sincere in describing his symptoms. The
examiner stated that although the Veteran did not currently
show x-ray changes of arthritis, he did have loss of motion
as well as objective physical findings that supported his
other subjective complaints.
In an October 2006 private medical report, the Veteran
complained of right knee pain that had increased over the
previous 7 years. Examination revealed mild varus in the
right knee, medial joint line tenderness, and a little
bossing of the femoral condyle medially. The knee was
stable, and there was no effusion. Range of motion testing
showed 100 degrees flexion and 0 degrees extension. X-rays
of the knee revealed decreased joint space at 30 degrees, but
knee flexion in the medial compartment was otherwise normal.
The physician diagnosed the Veteran with moderate
degenerative arthritis of the right knee and medial
compartment secondary to a previous meniscectomy.
The Veteran testified before the Board at a video conference
hearing in October 2006. Testimony revealed that the current
manifestations of the Veteran's right knee disability
included popping, giving out, swelling, tightness, severe
pain, and intermittent inflexibility. He testified that his
knee gave out 4 to 5 times a week and that it regularly
swelled up when he had been sitting or walking for an
extended period of time. He reported that he occasionally
wore a knee brace when his right knee felt worse than usual.
He stated that he experienced throbbing pain in the back of
the knee when it was bending or slightly bent. He testified
that swelling would occur around the entire knee. He
reported that cloudy weather and climbing stairs aggravated
his right knee disability. He stated that his right knee
condition had worsened in the previous 10 years.
Overall, the Board finds that there is strong evidence in
this case that the Veteran suffers from additional symptoms
other than painful or limited motion of the knee, which would
warrant both a 10 percent rating under DC 5259 and a separate
10 percent rating for traumatic arthritis of the right knee
under DC 5010. The evidence indicates that in addition to
having limited motion of the knee due to traumatic arthritis,
the Veteran suffers from pain, swelling, and instability of
the right knee. The February 2006 VA examiner found the
Veteran to be sincere in his reporting of the subjective
symptoms of his right knee disability and stated that the
objective medical evidence supported his subjective
complaints. The Board finds the Veteran to be credible and
competent to describe the pain, swelling, and instability he
has suffered from in the right knee. The Veteran's right
knee pain, swelling, and instability are symptomatic
residuals from his post-operative arthrotomy, and these
symptoms were taken into consideration as part of the 10
percent rating under DC 5259. The Veteran's limitation of
motion of the right knee due to traumatic arthritis was
additional disability of the right knee that was separate
from his symptoms of pain, swelling, and instability. A
separate 10 percent disability rating under DC 5010 based on
painful or limited motion of the right knee due to traumatic
arthritis would not be considered pyramiding under 38 C.F.R.
§ 4.14 (2008) since the Veteran's original 10 percent rating
for right knee disability under DC 5259 was based on pain,
swelling, and instability of the knee instead of limitation
of motion.
Therefore, the Board finds that the evidence of record does
not establish that the award of service connection for
traumatic arthritis of the right knee was clearly and
unmistakably erroneous. In the absence of such a finding,
the Board concludes that the severance of the award of
service connection for traumatic arthritis of the right knee,
effective as of May 31, 2005, was improper. The benefit of
the doubt rule has been considered in making this decision,
and the appeal must be granted and service connection
restored. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
Increased Rating
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities, which is based, as far as practically can be
determined, on average impairment in earning capacity. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2008).
Separate diagnostic codes identify the various disabilities.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher rating is assigned
if the disability more closely approximates the criteria for
the higher rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2008). After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2008).
Also, when making determinations as to the appropriate rating
to be assigned, VA must take into account the veteran's
entire medical history and circumstances. 38 C.F.R. § 4.1
(2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The
Board will also consider entitlement to staged ratings to
compensate for times since filing the claim when the
disability may have been more severe than at other times
during the course of the claim on appeal. Fenderson v. West,
12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination upon which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. § 4.40 (2008).
Evidence of pain, weakened movement, excess fatigability, or
incoordination must be considered in determining the level of
associated functional loss in light of 38 C.F.R. § 4.40,
taking into account any part of the musculoskeletal system
that becomes painful on use. DeLuca v. Brown, 8 Vet. App.
202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of
pyramiding) do not forbid consideration of a higher rating
based on greater limitation of motion due to pain on use,
including flare-ups. The provisions of 38 C.F.R. § 4.40 and
38 C.F.R. § 4.45 (2008), however, are applicable only in
conjunction with the diagnostic codes predicated on
limitation of motion. Johnson v. Brown, 9 Vet. App. 7
(1996).
The intent of the rating schedule is to recognize painful
motion with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2008).
The standardized description of joint measurements is
provided in Plate II under 38 C.F.R. § 4.71a (2008). For VA
purposes, normal extension and flexion of the knee is from 0
to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2008).
With respect to the joints, the factors of disability reside
in reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability;
(e) incoordination, impaired ability to execute skilled
movements smoothly; and (f) pain on movement, swelling,
deformity or atrophy of disuse. Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight-bearing are related considerations. 38
C.F.R. § 4.45 (2008). For the purpose of rating disability
from arthritis, the knee is considered a major joint. 38
C.F.R. § 4.45 (2008).
Arthritis shown by X-ray studies is rated based on limitation
of motion of the affected joint. When limitation of motion
would be noncompensable under a limitation-of-motion code,
but there is at least some limitation of motion, a 10 percent
rating may be assigned for each major joint so affected. 38
C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 (degenerative
arthritis) and 5010 (traumatic arthritis). DC 5010
(traumatic arthritis) direct that the evaluation of arthritis
be conducted under DC 5003, which states that degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
38 C.F.R. § 4.71a, DC 5010. The limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. 38 C.F.R.
§ 4.71a, DC 5010. In the absence of limitation of motion, X-
ray evidence of arthritis involving two or more major joint
groups with occasional incapacitating exacerbations will
warrant a 20 percent rating. The above ratings are to be
combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC
5010, Note 1.
A claimant who has arthritis and instability of the knee may
be rated separately under DC 5003 and DC 5257, and rating a
knee disability under both of these codes does not amount to
pyramiding under 38 C.F.R. § 4.14 (2008). VAOPGCPREC 23-97
(July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown,
6 Vet. App. 259 (1994). However, a separate rating must be
based on additional compensable disability.
Separate ratings may also be assigned for limitation of
flexion and limitation of extension of the same knee.
Specifically, where a Veteran has both a compensable
limitation of flexion and a compensable limitation of
extension of the same leg, the limitations must be rated
separately to adequately compensate for functional loss
associated with injury to the leg. VAOPGCPREC 9-04 (Sept.
17, 2004), 69 Fed. Reg. 59990 (2005).
The Veteran's right knee disability is currently rated as 10
percent disabling under DC 5259, which pertains to
symptomatic removal of semilunar cartilage. 38 C.F.R.
§ 4.71a, DC 5259 (2008). In addition, a separate 10 percent
rating based on limitation of motion and arthritis has also
been restored by this decision. 38 C.F.R. § 4.71a, DC 5003,
5010 (2008). Diagnostic Code 5260, which contemplates
limitation of flexion of the leg, and Diagnostic Code 5261,
which contemplates limitation of extension of the leg, are
also applicable in this claim. 38 C.F.R. § 4.71a, DCs 5260,
5261 (2008). Diagnostic Code 5257, which pertains to
recurrent subluxation or lateral instability, is also
applicable in this claim. 38 C.F.R. § 4.71a, DC 5257 (2008).
In considering the applicability of other diagnostic codes,
the Board finds that DCs 5256 (ankylosis of the knee), 5258
(dislocation of semilunar cartilage), 5262 (impairment of the
tibia and fibula), and 5263 (genu recurvatum) are not
applicable in this instance, as the medical evidence does not
show that the Veteran has any of these conditions.
Specifically, no treatment record, or any report of VA
examination demonstrate any objective finding of dislocation,
locking, or subluxation of the right knee. Similarly,
ankylosis of the right knee has not been demonstrated.
VA medical records dated from June 2003 to August 2005 show
that the Veteran's right knee disability was manifested by
intermittent flare-ups of right knee pain and swelling. The
Veteran reported that the pain in his right knee caused his
leg to give way when he walked.
In an October 2006 private medical report, the Veteran
complained of right knee pain that had increased over the
previous 7 years. Examination revealed mild varus in the
right knee, medial joint line tenderness, and a little
bossing of the femoral condyle medially. The knee was
stable, and there was no effusion. Range of motion testing
showed 100 degrees flexion and 0 degrees extension. X-rays
of the knee revealed decreased joint space at 30 degrees, but
knee flexion in the medial compartment was otherwise normal.
The physician diagnosed the Veteran with moderate
degenerative arthritis of the right knee and medial
compartment secondary to a previous meniscectomy.
On VA examination in May 2003, the Veteran complained of
constant right knee pain that varied in intensity with use.
He reported that going up and down stairs was very difficult
and that he avoided it when possible. He stated that he
could not squat with his right knee and that there were
popping and grinding sounds with flexing under pressure.
Examination revealed tenderness over the medial aspect of the
knee. The knee was not swollen. Range of motion testing
showed 90 degrees flexion and 0 degrees extension. The knee
was stable medially and laterally as well as anteriorly and
posteriorly. There was slight muscular atrophy of the right
leg due to the Veteran's adaptation over the years to
primarily using his left leg. The Veteran walked with a
slight limp. The examiner diagnosed the Veteran with
traumatic arthritis of the right knee. He found that the
Veteran's right knee disability would give him increasing
problems with activities that required extended standing,
walking, climbing, bending, or stooping. He stated that
during an acute exacerbation, there would be decreased range
of motion and increased fatigability with decreased
coordination, but he was unable to quantify it with medical
certainty.
At a December 2004 VA examination, the Veteran presented to
the examination room with a normal gait. Examination
revealed some crepitation with motion and slight tenderness
over the medial joint space. There was no swelling, and the
knee was stable both medially and laterally as well as
anteriorly and posteriorly. There was slight pain with
medial stressing of the knee. Range of motion testing showed
130 degrees flexion and 0 degrees extension. There was pain
on full flexion in all modalities. An x-ray showed some
patellar spurring. The examiner diagnosed the Veteran with
traumatic arthritis of the right knee. He found that during
an exacerbation, the primary limiting factor for further knee
function would be pain. He stated that it would be
impossible to give the effect of pain on increased
fatigability and decreased endurance during an exacerbation
without resorting to speculation.
On VA examination in February 2006, the Veteran reported not
having many problems with his right knee for 20 years since
his discharge from service. He complained of worsening
constant pain that increased in rainy weather. He stated
that it gave out easily and swelled up at times. He denied
flare-ups of joint disease, episodes of dislocation,
recurrent subluxation, inflammatory arthritis, or having
problems with activities of daily living. He occasionally
used a knee brace. Examination revealed no effusion or
ligamentous instability. There was some medial joint line
tenderness, but the patella was tracking normally. Range of
motion testing showed 110 degrees flexion and 0 degrees
extension with pain at 80 degrees. His range of motion was
unaffected by repetitive motion, and there was no objective
evidence of weakness, incoordination, fatigue, or lack of
endurance. The examiner found that the Veteran could have
further loss of range of motion and pain in functional
capacity during a flare-up but was unable to estimate the
actual additional loss. He diagnosed the Veteran with
traumatic arthritis of the right knee and noted that the
Veteran had seemed sincere in describing his symptoms. The
examiner stated that although the Veteran did not currently
show x-ray changes of arthritis, he did have loss of motion
as well as objective physical findings that supported his
other subjective complaints.
The Veteran is rated for his right knee disability under
DC 5259, which allows a maximum 10 percent disability rating
for symptomatic removal of semilunar cartilage. 38 C.F.R.
§ 4.71a, DC 5259. Because the Veteran is already in receipt
of the maximum rating under the code, he is not entitled to
an increased rating under DC 5259.
For VA purposes, normal extension and flexion of the knee is
from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. On the
above examinations, the Veteran's right knee had full
extension, or extension to 0 degrees. Extension to 0 degrees
warrants a noncompensable rating. Diagnostic Code 5261
therefore cannot serve as a basis for an increased rating in
this case. Similarly, DC 5260 cannot serve as a basis for an
increased rating in this case. The flexion of the Veteran's
right knee would have to be limited to 30 degrees in order to
warrant an increased rating of 20 percent. Flexion limited
at most to 90 degrees in the right knee, as demonstrated on
the May 2003 VA examination, does not warrant a compensable
rating under DC 5260.
The Board has determined that the Veteran is not entitled to
a compensable rating under DC 5261. Given that he did not
meet the criteria for a compensable rating under DC 5261,
General Counsel Precedent Opinion VAOPGCPREC 9-2004 is not
applicable. VAOPGCPREC 9-2004 (September 17, 2004).
VAOPGCPREC 9-2004 held that separate ratings could be
assigned when the criteria under DCs 5260 and 5261 were met.
In the present case, there is no basis for a compensable
rating under DCs 5260 or 5261.
The Board also finds that the Veteran is not entitled to an
increased rating due to functional impairment as a result of
pain on repetitive use. The examiners at each VA examination
found that during a flare-up, the Veteran would experience
further loss of range of motion in functional capacity,
increased fatigability, and decreased coordination due to
pain. However, even if the Veteran experienced painful
flare-up of his right knee disability, there is no evidence
which suggests, that, on repetitive use, the right knee would
be restricted by pain or other factors to only 30 degrees
flexion or 15 degrees extension, the criteria for a 20
percent rating, or restricted such that any separate
compensable rating would be warranted. Thus, even
considering the effects of pain on use, there is no probative
evidence that the right knee is limited in motion to 15
degrees extension or 30 degrees flexion, and thus the
requirements for an increased rating are not met. 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Furthermore, the Board finds that the evidence does not show
that any additional functional limitation would result in the
Veteran warranting any separate compensable ratings for
limitation of extension and flexion.
There is x-ray evidence in this case that demonstrates that
the Veteran's right knee disability is manifested by
arthritis. The criteria under DCs 5003 and 5010 apply when
limitation of motion would be noncompensable under a
limitation of motion code. 38 C.F.R. § 4.71a, DCs 5003,
5010. In this case, the Veteran's right knee disability is
noncompensable under DC 5260 and DC 5261, which are
diagnostic codes predicated on limitation of motion. As a
result of the Board's decision herein, service connection for
traumatic arthritis of the right knee has been restored, and
the Veteran is currently in receipt of a separate 10 percent
disability rating because there was x-ray evidence of
arthritis in the right knee, with a noncompensable level of
limitation of motion shown. An increased 20 percent rating
is not warranted unless there is x-ray evidence of arthritis
involving two or more major joint groups with occasional
incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5010.
In this case, there is no evidence of arthritis involving two
or more major joint groups, so a rating in excess of 10
percent for traumatic arthritis of the right knee is not
warranted.
A claimant who has arthritis and instability of the knee may
be rated separately under DC 5003 and DC 5257, and rating a
knee disability under both of those codes does not amount to
pyramiding under 38 C.F.R. § 4.14 (2008). VAOPGCPREC 23-97
(July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown,
6 Vet. App. 259 (1994). However, a separate rating must be
based on additional disability. Diagnostic Code 5257
provides a 10 percent rating for slight recurrent subluxation
or lateral instability. A 20 percent rating is warranted for
moderate recurrent subluxation or lateral instability. A 30
percent rating is warranted for severe recurrent subluxation
or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2008).
The Board finds that the Veteran is not entitled to an
increased rating under DC 5257. Although the medical
evidence shows that the Veteran suffers from instability of
the right knee, his right knee instability has already been
considered as part of the symptomatic residuals of his
arthrotomy under DC 5259. A separate rating for right knee
instability would amount to pyramiding under 38 C.F.R.
§ 4.14. Furthermore, the right knee instability is no more
than slight, so an increased rating based on DC 5257 is not
warranted. Therefore, because there is no evidence of any
recurrent subluxation, and the Veteran's right knee
instability has already been considered as part of his rating
under DC 5259, neither an increased rating nor a separate
compensable rating for his right knee disability based on
instability or subluxation is warranted.
In sum, the Board finds that the weight of the credible
evidence demonstrates that the Veteran's right knee
disability did not warrant a rating in excess of 10 percent
disabling under DC 5259 and 10 percent disabling under DC
5010. The preponderance of the evidence is against the
claim, and the claim must be denied. 38 U.S.C.A. § 5107(b)
(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2008). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide." Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the RO sent correspondence in December 2004 and April
2005; rating decisions in January 2005 and March 2005; a
statement of the case in August 2005; and a supplemental
statement of the case in June 2006. These documents
discussed specific evidence, the particular legal
requirements applicable to the claims, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the final
adjudication in the January 2009 supplemental statement of
the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained medical examinations in
relation to these claims. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
ORDER
Severance of service connection not being proper, service
connection for traumatic arthritis of the right knee is
restored.
An increased rating for a right knee disability is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs